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Full text of "Guru v. McMaster University, Board of Inquiry, November 1980 BOI 120"

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NOV 1 8 1980 






M. R. Gorsky, Board of Inquiry 


Monday, April 28, 1980 


Hamilton, Ontario 


J. A. Judge 

Counsel for Ontario Human 
Rights Board 

Janice Baker 

Counsel for McMaster University 

Yunus Timol 

Counsel for Doctor Bardi P. Guru 




At the opening of the hearing counsel for the Commission 
and counsel for the University moved to set aside the subpoenas 
duces tecum served on behalf of the Commission and the Respondent. 

In response to questions which I put to counsel it 
was apparent that the subpoenas were served for the purpose of 
obtaining discovery of the documents requested. (See response 
of Ms. Baker, at p. 6 of the transcript and of Mr. Judge at pp. 50-1) 
If such documents, on being examined, contained matter supportive 
of the position of the party causing the subpoena to be issued, then 
it appeared that they might be introduced into evidence by such 
party. Because counsel were frank to acknowledge the purpose for 
which the subpoenas were issued it becomes necessary, at the outset, 
to see whether there is a jurisdiction for using the subpoena duces 
tecum as a means of obtaining discovery because: 

... there is no common-law right to discovery, 
unless a right is conferred by the relevant 
legislation, none exists. ( Administrative Law 
and Practice , Re id and David (2nd ed.) (Butter- 
worths - Toronto)) (1978) at pp. 92. 3. 

The parties initially endeavored to secure the documents, 
which they now seek to have produced pursuant to the subpoenas, 
through an exchange of letters and, apparently as a result of their 
lack of success, resorted to their each requesting subpoenas 
duces tecum to achieve their purpose. 

A case where special statutory authority was present 
permitting the tribunal to order production and inspection of 
documents is Re Pasquale and Township of Vaughan , [1967] O.R. 417 
(C.A. ) . 


The authority of a board of inquiry to issue a subpoena 
duces tecum is established in the Statutory Powers Procedure Act , 
(hereinafter referred to as the "Act") S.O., 1971, cap. 47, s.12 
(1) (b) which provides that: "A tribunal may require any person, 
including a party, by summons, ... to produce in evidence at a 
hearing documents and things specified by the tribunal, relevant 
to the subject matter of the proceedings and admissible at a hearing". 

Although, in conventional civil litigation, " ... the 
summoning party is entitled to require the witness to produce the 
document, without putting him on the witness stand to speak as to 
his general knowledge of the case ... the document, unless it is 
one which "proves itself" on production, will have to be proved by 
some other witness". (2 Holmested and Gale, The Judicature Act, 1508). 
It is significant that the language of the above quoted section 
(12(1) (b) ) of the Act, emphasizes the fact that production of a 
document is for the purpose of producing it in evidence at the 
hearing and not for the mere purpose of obtaining discovery. There 
is a vital difference between the procedure permitting discovery 
of documents generally or specifically and those permitting the 
subpoenaing of a document at a hearing. 

"A subpoena duces tecum or an application in the nature 
of such a subpoena . . . may be set aside or refused where it appears 
that the request is irrelevant, fishing, speculative or oppressive." 
The Supreme Court Practice , 1979, Part I, at p. 606 referring to 
Senior v. Holdsworth, ex p. Independent Television News Ltd. , 
[1976] Q.B. 23 at p. 35, per Lord Denning: 

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. . . the court should exercise this power only where 
it is likely that the [document] will have a direct 
and important place in the determination of the issues 
before the court. The more assertion that the [document] 
may have some bearing will not be enough . If the judge 
considers that the request is ... fishing or speculative 
... the judge should refuse it. (emphasis supplied) 

In this case, in response to my questions, counsel 
acknowledged that the immediate purpose of the subpoenas was to 
be able to examine the documents. Only if the documents proved 
useful to the party requesting the subpoena was it intended to 
introduce them into evidence. I also take it that the opportunity 
to examine documents, which might be introduced by another party, 
would serve as an aid in cross-examination or re-examination. 

As the purpose for the subpoenas in this case is to 
enable an examination of the documents to ascertain whether they, 
in some way, support the complaint or a defence to the complaint, 
this does not appear to be a case where the subpoenas should be 
permitted to stand. 

I would add the following comments concerning the position 
of the Commission. Unlike the right to recieve documents from 
the Universitv, the Ontario Human Rights Code, (hereinafter 
referred to as the "Code") R.S.O. 1970, c.318, s.l4(2)(b), as 
amended, provides certain powers wherebv the "Commission or an 
officer of the Commission may . . . require the production for 
inspection or examination of employment applications, payrolls, 
records, documents, writings and papers that are or may be relevant 
to the investigation of the complaint." Section 14(5) of the 
Code provides that "No person shall hinder, obstruct, molest or . 
interfer with the Commission or an officer of the Commission in 
the exercise of a power or the performance of a duty under this 


Act or withhold from it or in any employment application, payrolls, 
records, documents, writings or papers that are or may be relevant 
to the investigation of a complaint." 

S.15 of the Code provides a means of punishing any breach 
of the provisions of the Act: 

Every person who contravenes any of the provisions 
of this Act or any order made under this Act is 
guilty of an offence and on summary conviction is 
liable, paragraph (a) if an individual is fined 
of not more than $500.00 or paragraph (b) if a 
corporation, trade union, employers' organization 
or employment agency, to a fine of not more than 
$500.00 or paragraph (b) if a corporation, trade 
union, employers' organization or employment agency, 
to a fine of not more than $2,000.00 

Although the Commission or its officers have certain 
rights, which are denied other parties, to production for 
inspection , as I read the Code a board of inquiry does not have 
any power to deal with a refusal on the part of any person to 
produce the documents referred to in s.l4(2)(b) of the Code. 
The Commission had every means, during the enquiry stage, of 
securing the documents it now seeks but apparently did not exercise 
its rights under s.14, for this purpose. I gather this to be the 
case from the statements of Mr. Judge. (See statement of Mr. Judge, 
at pp. 50-1 of the transcript). 

There are no other means of obtaining production for 
discovery open to the Commission. If I am wrong and the Commission's 
rights under s.14 of the Code are not exhausted, then it can still 
resort to them. It may be possible to argue that the inquiry stage 
of the proceedings continues through the board of inquiry stage. 
As I read the Code, for the purpose of discovery of documents, the 
inquiry stage ends when the Commission concludes that after due enquiry 





and attempt at settlement, a settlement cannot be achieved, and 
recommends to the Minister, pursuant to s,14a(l) of the Code, that 
a board of inquiry be appointed. I do not read s.14c of the Code as 
having application to the production of documents. 

Counsel appear to have been of the view that the power 
to issue a subpoena duces tecum permitted the use of such device 
for the purpose of obtaining production and discovery of the 
documents sought. The legislature has provided for the form of 
production for inspection and examination of documents by the 
Commission or an officer of the Commission. I have concluded 
that a power to issue a subpoena duces tecum does not provide an 
alternative method of securing this purpose. 

As in the case of other tribunals, which do not possess 
the power to compel production of documents for inspection and 
examination, it may be necessary to grant an adjournment at the 
hearing pursuant to s.21 of the Act, in order to do substanial 
justice to the parties, where they are genuinely surprised by the 
presentation of evidence which they could not have reasonably been 
aware of. 

The legislature could, in enacting s.l2(l)(b) of the Act, 
have merely provided, as is often the case, that the person being 
subpoenaed may be required to bring with him documents referred to 
in the subpoena. Instead the subsection requires the person to 
"to produce in evidence" the documents. It has been held that even 
in the absence of a specific power in a tribunal to issue a subpoena 
duces tecum , this would be implied where the tribunal had the power 
to issue a subpoena requiring a person to give evidence on oath or 



affirmation at a hearing. ( Re International Union of Operating 
Engineers, Local 955 and Hunuset Bros. Ltd . (1975) , 49 D.L.R. (3rd) 
288 (Alta. S.C. T.D.) at p. 291-2. This is not the same thing as a 
finding that the subpoena power could be used in place of discovery 
devices not otherwise provided for in the relevant legislation. 

If the position of the parties is the correct one and 
it was permissible to utilize s,12(l) (b) of the Act as a discovery 
device and not only as a means of producing the documents in evidence , 
this would inevitably give rise to situations where the parties 
would be endeavoring to obtain discovery of documents, and the 
hearing would be suspended while inspection of the documents took 
place. Following such inspection the party issuing the subpoena 
might decide whether to call a witness to prove the document and 
have it introduced in evidence. I cannot believe this was the 
intention of the legislature. 

In the recent case of Re Metropolitan Toronto Board of 

Commissioners et al. and Ontario Human Rights Commission et al. 

(1980), 27 O.R. (2d) 48 (Div. Ct . ) Labrosse , J. stated, at p. 49: 

The second application is for an order quashing 
the ruling of the board of inquiry whereby the respondent 
Dickson was required to produce the personnel records 
of certain members of the Metropolitan Toronto Police 
Force and whereby counsel for the board was granted an 
adjournment and the right of access to and of examination 
of such records before the inquiry proceeded. 

And further at p. 53: 

We find no error in the ruling of the board of 
inquiry in refusing to set aside the subpoena for the pro- 
duction of the records. There is no material in the record 
to enable this Court to make any determination respecting 
the relevance of the documents. The board has already 
decided that the examination of the records will be 
held in camera in order to protect the identity of the 
constables involved. In so far as their admissibility, 
it will be for the board to determine at the time counsel 
seeks to introduce them into evidence, and if they are 
admissible, to determine the weiqht they should be aiven. 





Mr. Parker submitted that the board has ruled in 
advance that the records are admissible in evidence. If 
this is so, and the transcript is not clear on this point, 
then the board was in error, because in our view, the 
appropriate time to rule on their admissibility is as 
stated above. 

Finally, in respect of the adjournment granted to 
counsel for the board, to permit him to examine the records, 
this was purely a matter of discretion. The board has 
exclusive jurisdiction over the conduct of its procedure 
and the exercise of its discretion to grant the adjournment 
is not reviewable by this Court, provided that the board 
has not violated recognized principles of fairness or 
conducted itself in such a way as to amount to a refusal 
of jurisdiction, which is not the case here. In any 
event, the transcript indicates that the adjournament was 
granted for two reasons: to permit counsel for the Board 
to examine the records and to permit counsel for the 
applicants to bring these applications. 

It is not clear from the portions of the reasons 
for judgment in the Metro Toronto case (supra) , dealing with 
the subpoena duces tecum , that counsel to the Commissioners was 
utilizing the procedure as a discovery device. From the context 
it appears that counsel was given an opportunity to examine 
the records before seeking to introduce them into evidence, 
at which time the matter of their being admissible in evidence dealt with. It is not possible, given the language 
employed of Labrosse, J., to interpret his reasons as indicating 
the subpoena duces tecum can be used solely as a discovery 
mechanism. As I previously indicated, such a ruling would 
introduce discovery into a proceeding which does not provide for 
it through a device which has a quite different purpose. In 
any event the language used in s.12(1) (b) is specific in restricting 
the summons : 

To produce in evidence at a hearing documents 
and things specified by the tribunal. 


This choice of language is clearly directed to the ancillary 
purpose of the summons being the production in evidence and not 
the discovery of documents, following which the documents may, 
if counsel decides, be proved and tendered in evidence. 

In the case of Burchard v. Macfarlane ex parte Tindall , 

1891 2 Q.B. 247 Lord Escher, M. R. stated at p. 247-8: 

A subpoena duces tecum was an order from the 
Court to a person to produce a document which was 
alleged to be in his possession - to produce it 
to the Court at the trial , and not to produce it 
to the parties, for, under a subpoena duces tecum, 
when a witness brought the document into Court the 
parties could not ask him for it. The parties have 
no right to see it, and all that could be done on a 
subpoena duces tecum was that the witness produced 
the document to the Court, subject to the order of 
the Court, not to the parties; and he might insist 
that his document should not be handed to the parties 
even at the trial. All that could be done was that the 
Judge, when he was satisfied that it was evidence 
in the case for either of the parties, might order 
it to be read. 

It is therefore ordered that the subpoenas be set 
aside. I need not rule, at this time, on the arguments made on 
the subject of privilege as they relate to the documents. 

I would only add that the parties appear to have resolved 
the matter of particulars relating to the complaint. (See p. 53 
of the transcript) . 

DATED AT London, Ontario 

12 November, 1980 

M. R. Gorsky 
Board of Inquiry